Enforcement of a Child's Right to Primary Education

Abstract

Education is both a human right in itself and an indispensable means of realizing other human rights. The right to education can be best characterized as an empowerment right as it promotes the realization of other social and economic rights. However, education is something more than mere schooling. As defined by the World Conference on Education on all, “basic education” is an action designed to meet the “basic learning needs” of every person-child, youth and adult. The scope of “basic education” has been widely understood to include among other things, “early childhood car and initial education,” bringing the issue of a child’s right to primary or ‘elemental’ education to the forefront.Internationally, the importance of free, quality and compulsory primary education has been emphasized at several levels. The United Nations General Assembly Special Session on Children in 2002 through its outcome document titled- State of the World’s Children came up with a “4 A Scheme” in this direction. Similarly, education as a right of each child has been stressed within the framework of international standards, beginning with those in the UDHR and continuing with subsequent human rights treaties, and the activities of international bodies combining to establish the right to education as a universal norm. The state obligation of providing basic education for all as part of its international obligations under the international law is contained in the International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child; World Declaration on Education for All and World Education Forum Dakar Framework for Action, EFA (2000). However, the absence of a monitoring or a quasi-monitoring system that would directly oblige states parties to the implementation is a serious defect of international legal protection of children.In conformity to their international obligations, states across the world have attempted to give effect to the right of primary education through constitutional provisions as well as legislative enactments. In India, the right to free and compulsory education was first incorporated in the Directive Principles of the State Policy through Article 45 of the Constitution. In 1993, this right was upheld by the Supreme Court as a fundamental right enforceable by the citizens. Through the Constitution (Eighty-sixth Amendment) Act, 2002, the right was incorporated as a separate fundamental right under Article 21-A and a duty was imposed on parents and guardians to provide opportunities to children for education under Article 51-k. As a follow up legislation in terms of Article 21-A of the Constitution of India, the Indian Parliament enacted Right of Children to Free and Compulsory Education Act, 2009 ('RTE') which came into force on 1st April, 2010.RTE is the first Central Act in education and hence, an uncharted territory for everyone. It introduces many changes that are revolutionary and if implemented properly, will vastly improve the system of imparting education in India. However, some of the provisions of the Act may have unintended consequences that might counter the advantages of the new system. The objective of this paper is to critically examine the Right to Education Act, 2009, identify the loopholes and impediments to the effective implementation of the Act and propose recommendations accordingly. The best practices from legal systems across the world have been taken as a reference point to suggest an all-encompassing model for the enforcement of a child’s right to primary education.